SOVEREIGN NATIONS: Consent decree extended

Nov. 19—TRAVERSE CITY — A Michigan federal judge indefinitely extended a two-decade-old agreement governing Native fishing in the Great Lakes, as three years of negotiations over a new consent decree have not yet reached an agreement by its expiration date.

U.S. District Judge Paul Maloney granted the request from the federal government, the state of Michigan and four sovereign nations, saying an extension of the consent decree was "necessary to protect the natural resources subject thereto."

The five Native nations, state, and federal authorities have been negotiating a new agreement since September 2019 and have sought — and received — seven extensions of the expiration date, including this latest from Maloney. Proceedings stalled during the COVID-19 pandemic, which delayed negotiations in 2020.

In a September extension request, the parties told the judge they had developed a "near final" agreement, but the motion and order said the State of Michigan and the Grand Traverse Band of Ottawa and Chippewa Indians were at a stalemate over the Grand Traverse tribal zone provisions.

The joint motion did not specify the issues behind their disagreement. An attorney for the GTB, William Rastetter of Olson Bzdok & Howard PC, told the Record-Eagle the parties could not discuss the negotiations publicly because of confidentiality agreements. Representatives of other parties involved in the suit also could not respond to requests for comment.

Judge Maloney ordered each party to submit a sealed proposal if there is no resolution by Nov. 21 and ordered tribal representatives to accompany the lawyers to oral arguments on the issue.

The extension, which was granted this week, will keep the 2000 consent decree in place indefinitely until a new consent decree is implemented.

Four of the five tribes — the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians and the Little Traverse Bay Bands of Odawa Indians — support the extension, saying it was necessary to prevent "a regulatory gap" and protect the Great Lakes fishery.

Before the consent decree, many Anishinaabek fishermen were arrested for practicing their rights, even though they were federally protected to do so. The State of Michigan challenged those rights and lost in federal court.

The 1985 Consent Decree, an out-of-court settlement following a 1979 federal court ruling, reaffirmed Anishinaabek rights to fish in the Great Lakes. The ruling meant tribal citizens aren't governed by the same state regulations as non-Native anglers.

But, until 1985, it was illegal for tribal citizens to set gill nets, even though it was negotiated that the signing 1836 Treaty would provide tribes the rights to continue traditional practices of hunting, fishing, and gathering on their ancestral homelands and waters.

At that time, three of the five tribes under the agreement were federally recognized. But the tribal nations of the Little Traverse Bay Band of Odawa Indians and the Little River Band were not able to exercise their fishing rights until they became federally reaffirmed in 1994.

The latest version was struck in 2000 — a co-management framework for the five Anishinaabek tribes under the 1836 Treaty of Washington, the federal government of and the State of Michigan.

In effect since 2000, the consent decree sets out tribal fishing zones in parts of Lake Michigan, Lake Huron and Lake Superior for five sovereign nations and fish harvest limits for certain species.

All sovereign nations under the Chippewa Ottawa Resource Authority (CORA), the Intertribal management for 1836 Treaty fishery, keep records of harvest and have spent decades collecting data in the study of fish populations. As previously reported by the Record-Eagle, that data has shown that traditional fishing does not negatively impact resources.

Report for America corps member and Indigenous Affairs' reporter Sierra Clark's work is made possible by a partnership between the Record-Eagle and Report for America, a journalism service initiative founded by the nonprofit Ground Truth Project. Generous community support helps fund a local share of the Record-Eagle/RFA partnership. To support RFA reporters in Traverse City, go to